Commentary on Bunting v Zurich

Updated: Jul 12, 2020

Dean Roberts has been engaged with providing basic hire rate rebuttal evidence for many years. Having the approved judgment in Bunting v Zurich, he has updated the note that he wrote in May 2020 to reflect on the evidential inconsistencies that the approved judgment highlights and also to offer guidance to those currently dealing with rate evidence from Which Rate and others. I am grateful to Dean. His contact details appear at the bottom of the page.


Steve Evans

9th July 2020

Bunting v Zurich Insurance [2020] EWHC (QBD)

It is probably no exaggeration to suspect that the entire claimant fraternity has been waiting with bated breath for Justice Pepperall’s decision ever since Steven Turner first published his ominous attendance note nearly two months ago.


Ensuing posts online from DAC Beachcroft, Clyde & Co, and BLM, et al, have no doubt further exacerbated the trepidation.


Alas, an approved judgment is finally available.


So where does the decision leave the claimant fraternity?


Is it really the coup de grâce that will “mean the practice of adducing rebuttal statements to criticise the BHR evidence is a thing of the past”, as suggested, and sorely desired, by BLM.


What follows is the author’s opinion as to why it most certainly should not, and will not, mean anything of the sort.


Indeed, it is noted from paragraph 16 of the judgment that Mr. Rose’s evidence ‘was admitted into evidence without any objection as to its shortcomings or any breach of the Deputy District Judge’s order’.


The following seeks to address those shortcomings.


The Evidence

In reaching his decision, Pepperall J has upheld the admissibility of uncorroborated lay evidence from Mr. Philip Rose of Whichrate based on his “experience”.

However, as many readers will already know, every Whichrate author implies within their statements that their uncorroborated comments are based on their experience; this being due to the fact that their statements incorporate these comments as generic assertions not originally authored by themselves.

In relation to the giving of lay evidence, section 3(2) of the Civil Evidence Act 1972 provides that

‘It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived’ (the author’s emphasis added).


Therefore, individuals giving evidence for a company should be confined to opinions on matters that they have ‘personally perceived’ and not be allowed to opine generally on matters in which they had no personal direct involvement.

It is a mandatory (but often overlooked) requirement that a witness provide the source of any information and belief in their statement.


This author suspects that Mr. Barnett may be the original creator (or co-creator) of the master template.


Mr. Rose was certainly not the original author of the majority of the body of his statement.

Again, this is only a suspicion, but worthy of further examination by way of a formal rebuttal statement or Part 18 request for further information.


Mr. Barnett is a Director of Whichrate, though Companies House does list a number of other Directors, none of which, however, have ever provided statements.

This begs the obvious question: What personal “experience” does Mr Rose actually have of hiring with Thrifty, and for more than 30 days?


It can be reasonably extrapolated from the contents of each and every Whichrate statement that Mr. Rose probably has not had any because each author includes yet another generic assertion within their statement that hire periods can be extended indefinitely either by (1) visiting the supplying branch (2) by telephone, or (3) online.

So exactly which one is pertinent to Thrifty, Mr. Rose? You should know, what with your “experience”. 


Furthermore, Mr. Rose exhibited the Thrifty terms and conditions of hire with his statement; so why not equally tangible evidence from Thrifty that it would have hired beyond 30 days and the precise procedure to be followed in that event? Why only hearsay that contradicted the express written terms and conditions of hire?


Perhaps Thrifty require a ‘cooldown’ period after 30 days before allowing a hirer to hire again.


For example, the author possesses an email from Enterprise, in which the same advises that ‘At the end of a 28 day personal rental, we would usually require you to return the vehicle and take a two week cooldown period before you are able to hire with us again’.


Availability

As for the generic assertions made by Whichrate’s authors within the latest incarnation of their statements that “All vehicles quoted were available for hire at the time of enquiry”.

and

Vehicles not available for hire are shown as 'sold out', 'not available at this location' or were not displayed on the website”,

these are patently erroneous in the case of Thrifty.

Indeed, the author possesses email evidence directly from Thrifty as to the difference between its ‘Pay on Pick Up’ rate and ‘Prepay’ rate; the former being an indication that the vehicle is not readily available (i.e.) it is not held in stock at the selected branch.

Indeed, on an unrelated case, the author was presented with basic hire rates evidence from another company, namely Pinnacle Costs & Claims Solutions Ltd (“Pinnacle”).

In the process of rebutting basic hire rates evidence presented from Thrifty, the author had, in numerous previous other cases, provided the aforementioned evidence from Thrifty regarding the distinction between its ‘Pay On Pick Up’ and ‘Prepay’ rate.

Therefore, the author from Pinnacle, Mr. Pretorius, sought to test this distinction. To his credit, Mr. Pretorius exhibited a screen-print of an online website chat between himself and an operator from Thrifty.

Unsurprisingly, the operator confirmed that the vehicle selected (due to its category) was not readily available and that an enquiry would need to be made before any booking could be confirmed.

Once again, this directly contradicted the above oft-quoted uncorroborated assertion by Whichrate authors regarding availability from Thrifty.

Unsurprisingly, this is often the case with premium/prestige/elite/sports vehicles. Mainstream suppliers do not purchase expensive surplus vehicles to have them lying around being unused and depreciating in value. Indeed, what business model would facilitate this?

Having read the Bunting Judgment, this author remains none the wiser as to which Thrifty rate was presented by Mr. Rose; though it is reasonably assumed it was the ‘Pay on Pick Up’ rate for the availability (or rather lack thereof) argument to have had any chance of being afforded any credence.

However, if the ‘Prepay’ rate was available, then Pepperall J, and Recorder Le Poidevin QC before him, would not have had sight of tangible evidence from Thrifty regarding the distinction between the two rates and, therefore, this would not have been a live issue.

Ergo, irrespective of Bunting being a High Court decision, this will not prevent a judge at first instance from making a distinction if furnished with tangible evidence directly from Thrifty contradicting Mr. Rose’s (and other authors’) assertion that all vehicles shown are readily available unless the web entry showed otherwise.


For completion, the author attempted to book a vehicle from Thrifty’s elite range on 01.06.2020, at approximately 10:47 and, having inserted the relevant information, was emailed the following response: ‘Thank you for your reservation request to Thrifty Car Rental at www.thrifty.co.uk on 01/06/2020 at 10:47:08 As this is a special request we will need to check our fleet for availability on the dates that you have requested. We will get back to you as soon as possible to confirm whether the vehicle is available. PLEASE NOTE THIS IS NOT A RESERVATION AS YET. Reservation request UR1543709


On 02.06.2020, at approximately 08:50, the author received a telephone call from James at Thrifty, in which he advised (verbatim) that: “Unfortunately, we cannot guarantee this vehicle will be available in the future so we will be cancelling off your reservation, I’m afraid”.


Of further and potentially pertinent note, is a very recent change which has been implemented by Dollar in the manner in which it advertises vehicles from its Premium/Luxury/Elite ranges; a change which has a direct impact on the common claim made by Whichrate that all vehicles displayed are readily available.

Previously, and irrespective of whether a vehicle was being advertised at the ‘Prepay’ or ‘Pay on pick up’ rate, a hirer was presented with a ‘BOOK NOW’ button.

It would appear that, having been faced with customers who desired a specific Premium/Luxury/Elite vehicle, only for the same to be disappointed with an actual lack of availability of the desired vehicle, Dollar has now decided to replace the ‘BOOK NOW’ button with an ‘ENQUIRE NOW’ button, thereby accurately reflecting the fact that the vehicle is NOTreadily available.

Given that the Scot Group Ltd operates both the Dollar and Thrifty rental brands in the UK, the author suspects that Thrifty may follow suit with the aforementioned amendment and, if it does, this will prove a valid and direct contradiction to Whichrate’s uncorroborated claims that all vehicles listed are readily available. Watch this space!

The alternative/hybrid assertion readily accepted by Recorder Le Poidevin QC (and Pepperall J) was Mr. Rose’s claim that, if the vehicle actually selected by the Claimant/Appellant was unavailable, then an equal or superior vehicle would unquestionably have been provided.  The terms and conditions of hire from Thrifty provide that

The Thrifty location will do its best to have the vehicle which is the subject of a confirmed reservation available on the day and at the time you have requested’ (the author’s emphasis added). and further provide that

‘In the unlikely event that a vehicle from the category booked is unavailable Thrifty will supply a Free Upgrade. A Free Upgrade is defined as a vehicle which has a greater rental value than the category booked’.

However, if the other superior vehicle is also only being advertised at the ‘Pay on Pick Up’ rate, then the logical fallacy in Mr Rose’s (and Pepperall’s J) approach to the above terms is laid bare.

Again, Mr. Rose’s uncorroborated lay evidence was readily accepted to answer this dichotomy. 

Furthermore, the Defendant/Respondent unsurprisingly relied on the comments of Jacob LJ in Bent v Highways and Utilities Construction Ltd & Anor [2010] EWCA Civ 292 (“Bent No.1”) regarding the admissibility of non-contemporaneous rates evidence, where he opined at paragraph 8 that “Very often when one is assessing valuation evidence in all sorts of fields, one has evidence of prices of the same or similar things at different dates and has to make appropriate adjustments. Working with comparables and making adjustments is the daily diet of judges concerned with valuation in all sorts of fields. Clearly evidence of the spot rate a year or so later than the relevant date is likely to throw considerable light on what the spot rate would have been at the time”.

With all due deference to Jacob LJ, he appears to have overlooked the glaringly obvious point that the vehicles attached to that ‘spot rate a year or so later’, may not have been available and that basic hire rates fluctuate; the latter point being admitted by Whichrate within the latest incarnation of its statement, in which it readily acknowledges that “Variable Tariffs are subject to fluctuation

Therefore, non-contemporaneous basic hire rates do notthrow considerable light on what the spot rate would have been at the time”.

It is common knowledge (apparently unbeknown by Jacob LJ) that basic hire rates fluctuate (intra-weekly and even intra-daily and intra-hourly) and actually increase during the summer period and periods leading up to major holidays (i.e.) Christmas, New Year, Eid and Easter, etc.

Indeed, the Indigo Car Hire website reveals that,

‘Seasonality: – in times of holiday periods like schools summer holidays, half terms and bank holidays are all time where the prices can change. The busiest times in the car rental industry include Easter, Christmas and Summer and you will find that the prices for your car hire will be increased due to the busyness of the time of year and the seasonality’.


Furthermore, six years prior to Jacob’s LJ comments, Lord Hope stated at paragraph 34 in Lagden v O’Connor [2004] UKHL 64 (“Lagden”) that “It is not enough that an element of betterment can be identified. It has to be shown that the Claimant had a choice, and that he would have been able to mitigate his loss at less cost………. So, if the evidence shows that the Claimant had a choice, and that the route to mitigation which he chose was more costly than an alternative that was open to him, then a case will have been made out for a deduction. But if it shows that that the claimant had no other choice available to him, the betterment must be seen as incidental to the step which he was entitled to take in the mitigation of his loss and there will be no ground for it to be deducted” (the author’s emphasis added). It would take the finest silver-tongued advocate to persuade any court that ‘choice’ is not synonymous with ‘availability’.

Therefore, whilst it could be said that Mr Rose satisfied this burden - though not if the Thrifty rate was the ‘Pay on Pick Up’ rate - the other companies which provide BHR evidence (TCF Corporate, SG Consultancy, Pinnacle, et al) however, utilise non-contemporaneous rates evidence. 

Indeed, without evidence of contemporaneous availability and basic hire rates, how can the Court accurately assess, in the words of Aikens LJ at p.73 in Pattni v First Leicester Buses Ltd[2011] EWCA Civ 1384 (“Bent No.2”) “what, in the same broad geographical area, would have been the BHR for the model of car actually hired and if so what is it; if so, what is the difference between the credit hire rate and the BHR?(the author’s emphasis added).

Aiken’s LJ approach was approved by Kitchen LJ in Stevens v Equity Syndicate Management Ltd[2015] EWCA Civ 93 (“Stevens”), when he stated at p. 21 that “This is a helpful passage for it explains a structured approach which may usefully be adopted in deciding cases of this kind”.

Furthermore, Recorder Le Poidevin QC and Pepperall J rehearsed this very guidance.

Of further note is that Jacob’s LJ comment at paragraph 9 of Bent No.1 that “I would add further that one must not be hypnotised by any supposed need to find an exact spot rate for an almost exactly comparable car. Normally, the replacement need be no more than in the same broad range of quality and nature as the damaged car. There may be a bracket of spot rates for cars rather "better" and rather "worse". A Judge who considered that bracket and aimed for some sort of reasonable average would not be going wrong” appears to have been diplomatically deprecated by Aikens LJ in Bent No.2, who required BHR evidence for the “model of car actually hired”, and by Kitchen LJ in Stevens, who required BHR evidence for “the type of car actually hired”.

Therefore, it appears that Jacob’s LJ remark about cars was as equally disowned as it was his remark regarding the applicability of a ‘spot rate a year or so later’, which, again, may not have been available in any event.

However, Recorder Le Poidevin QC (Pepperall J agreeing) was persuaded to reanimate the latter.

Given the above, it is hardly surprising that in the years following Aiken’s LJ and Kitchen’s LJ comments, HHJ Oliver-Jones QC in Dhami v Amlin (2013) Birmingham County Court (unreported), District Judge Wright in Nutkani v Lionel (2018) Willesden County Court (unreported), and HHJ Hughes QC in Jermin v Pendleton (2017) Carlisle County Court (unreported), et al, all held that non-contemporaneous evidence failed to discharge the burden of proving that there was a viable and cheaper “choice” which was “open” to the Claimant at the material time.

It would appear that Lord Hope’s, Aikens’ LJ, Kitchen’s LJ, HHJ Oliver-Jones’ QC, District Judge Wright’s, and HHJ Hughes’ QC analysis of the nature and extent of the evidential burden imposed on a Defendant are correct and concur with the dicta of Potter LJ in Standard Chartered Bank v Pakistan National Shipping Authority [2001] EWCA Civ 55, pp.38-41, where he opined that “That being so, it is part of that burden not merely to show that the plaintiff failed in some respect to act reasonably, but that his failure did in fact lead to a diminution in the price he could have obtained had reasonable steps been taken”.

and

The task of proving that the claimant has suffered loss which was reasonably avoidable is not satisfied simply by demonstrating that he acted precipitately or unreasonably in entering into a contract of sale which collapsed. It is necessary also to prove that, had he not done so, his loss (or some part of it) would have been avoided. That, in turn, involves proof that on the balance of probabilities a better price, or at least a more profitable deal than that ultimately obtained, would have resulted. In that respect, the judge found that PNSC had failed”.

Furthermore, in the case of McBride v UK Insurance Ltd (Rev 1) [2017] EWCA Civ 144 (“McBride”), Flaux LJ held at p. 78 that “It was incumbent on the defendant to produce evidence from Insurance4carhire.com that it would have insured a Jaguar XK valued at around £60,000-£65,000 for a period of 72 days in November 2012 and it has simply not done so” (the author’s emphasis added).

If Flaux LJ demanded contemporaneous evidence of stand-alone excess reimbursement insurance then, by parity of reasoning, why should this standard of proof not be imposed on the actual basic hire rate itself?


Furthermore, the amended CPR Practice Direction 16 - 6.3 provides that,


‘Where the claim includes the cost of hire of a replacement motor vehicle following a road traffic accident, the claimant must state in the particulars of claim—

(1) the need for the replacement vehicle at the relevant time;

(2) the period of hire claimed (providing the start and end of the period);

(3) the rate of hire claimed;

(4) the reasonableness of the period and rate of hire; and

(5) impecuniosity (if the claim relates to credit hire)’.


It is clear from the above, that the Claimant is required to plead facts regarding what he/she actually did after the road traffic accident.


In particular, is the requirement that the Claimant must state the reasonableness of the rate of hire from the start of the hire period.


In practical terms, and to satisfy that requirement, the Claimant would, by necessity, have had to browse the Internet and locate evidence of vehicles available to him/her and compare the costs of hiring those vehicles with the cost of the credit hire vehicle being offered so as to make an accurate assessment of the reasonableness of that credit hire rate, thereby satisfying Aikens’ LJ requirement in Bent No.2 to establish,


what, in the same broad geographical area, would have been the BHR for the model of car actually hired and if so what is it; if so, what is the difference between the credit hire rate and the BHR?” (the author’s emphasis added).


However, Recorder Le Poidevin QC (Pepperall J agreeing) held that contemporaneous basic hire rates evidence is not required when assessing the recoverable amount in damages.


This begs the obvious question: How can non-contemporaneous basic hire rates evidence be applicable to the basic hire rates which the Claimant may have located having conducted an Internet search post-accident?


It appears difficult to reconcile the two. They are clearly in conflict.


Indeed, as previously noted, it is common knowledge that basic hire rates fluctuate (intra-weekly and even intra-daily) and actually increase during the periods leading up to major holidays (i.e.) Summer, Christmas, New Year, Eid and Easter, etc.


Furthermore, the recent COVID-19 pandemic and lockdown has caused a surplus of vehicles putting tremendous pressure on rental car companies; translation: good availability and lower than normal rental prices.


Therefore, it appears that there must be evidence that the vehicle hired by the Claimant was actually available to hire at less cost when the Claimant needed to hire for a claim that the Claimant failed to mitigate to succeed.

The Period of Hire – Rental Extensions

Another point which appears to have been overlooked by Recorder Le Poidevin QC and Pepperall J (due to their acceptance of Mr Rose’s imperfect evidence) is the terms and conditions from Thrifty regarding rental extensions.

The same provide that

You will have the vehicle for the rental period shown in your Reservation Confirmation. If you do not bring the vehicle back on time, or if you do not contact us and get our agreement to an extension of your rental, you are breaking the conditions of this agreement’ (the author’s emphasis added). and ‘You will have use of the vehicle for the period shown in the agreement. We may agree to extend this rental period, but the total rental duration will not be for more than 30 days’ (the author’s emphasis added).

Assuming that Thrifty is prepared to extend the maximum rental period beyond 30 days, it can be reasonably extrapolated from the above terms that there is no guarantee that the vehicle would necessarily have been available to the Claimant/Appellant upon the expiry of each and every 7 day rental period in any event.

This prospect is hardly surprising, considering the vehicle would still be advertised as being available from day 8 (if one is utilising a 7-day hire approach), and the probability of the vehicle having been assigned to another customer only increases the longer the required hire period; in the present case, 78 days. 

Indeed, by way of example, clause 9 of the terms and conditions of hire from Avis and Budget provides that If you want to extend the rental, please contact us as soon as possible. At the latest, this should be before the end date and time on your rental agreement. We’ll do our best to help although another customer may have booked the vehicle”.

Similarly, the terms and conditions of hire from Sixt provide at clause 7.2 that

On receipt of your request to extend the Rental Period we will do our best to assist you with this request, although it is possible that another customer will have booked the Vehicle to use straight after the expiry of the Rental Period’.

And so it is that Avis, Budget and Sixt, et al, find it prudent to warn customers that there is no guarantee that their hire vehicles (or another vehicle) will necessarily be available upon the expiry of the agreed hire period (i.e.) the vehicle could have been assigned to another customer.


Moreover, there is a further issue which warrants comment.


Recorder Le Poidevin QC (Pepperall J agreeing) found that the 30-day limit point did not justify any uplift as the charge per week for any hire beyond the first 4 weeks was unlikely to be more than the cost of the first 4 weeks.


However, the author possesses tangible evidence obtained directly from Thrifty, in which the same confirms that “The branch may honour the rate you booked on although that is up to the branch to decide, generally we work on the current rate of extensions


Rentalcars.com is an online broker which acts as an agent to facilitate the hiring of vehicles between hirers and the mainstream rental companies which advertise their vehicles on its website. The same advises that:


‘If you extend your booking during your rental, the extra days will be charged at a last-minute day rate, which will be more expensive than if you booked ahead of time’.

Consequently, it appears that Recorder Le Poidevin QC’s and Pepperall’s J support for the exercise of utilising the originally secured rate and then applying that on a pro-rata basis to the total period of hire was demonstrably flawed.

By way of further example, clause 9 of the terms and conditions of hire from Avis and Budget provide that ‘Extra days will be charged at 'pay at location' prices

These prices are more expensive than the ‘Pay Now’ or ‘Prepay’ prices.


In similar fashion, clause 2 (b) of the terms and conditions of hire from Enterprise provides that ‘Owner may agree to extend the Rental Period orally or in writing ("Extended Rental Period") but the overall Rental Period may never be more than 90 days. The Extended Rental Period may be subject to higher charges and/or to additional security deposit which will be disclosed to Renter prior to the extension of the Rental Period’ (emphasis added).


Likewise, the terms and conditions of hire from Hertz provide that ‘If you want to change the time or place of return or arrange for us to collect the vehicle, you should call the location at the number provided on the Rental Agreement. Any amendment to the agreed return arrangement is at our discretion and may involve additional charges’ (emphasis added).


Clauses of similar effect can be found in the terms and conditions of numerous other rental companies (i.e.) it is the prevailing rate which is charged for an extension and not necessarily the rate originally secured.


Therefore, Recorder Le Poidevin QC and Pepperall J engaged in a totally assumptive ‘rough and ready’ exercise based solely on Mr Rose’s uncorroborated evidence that, not only would Thrifty had been prepared to extend the contractually-expressed 30-day maximum rental period, but that indefinite rental extensions every 7 days over a period of 78 days would have been unquestionably available to the Claimant/Appellant, and that the rate of hire upon each and every rental extension would have been exactly the same as that originally secured.

This assumption is not sustainable on the tangible evidence from Thrifty, and is certainly not reflected in the terms and conditions of hire from Avis, Budget, Enterprise, and Hertz, et al.

Furthermore, companies such as Thrifty are commonly known as ‘Short-Term’ rental companies. It is leasing companies that ordinarily offer rental periods lasting months/years. Indeed, Thrifty refer to their terms and conditions as providing ‘Short Term Rental’ and the CMA also referred to ‘Short-term car rental’ in its 2015 report.

Of potentially more germane importance is the fact that the House of Lords was not seized of the question of indefinite rental extensions in Dimond v Lovell [2000] UKHL 27 (“Dimond”), because Mrs Dimond only hired for 8 days; this period being reasonably foreseeable due to her vehicle suffering only minor damaged.

One can only hazard a guess what influence a 78-day+ hire could have had on their Lordships’ considerations in Dimond had the Court been presented with tangible evidence regarding the precarious nature of rental extensions and maximum rental periods imposed by short-termvehicle rental suppliers. 

Arguably, Lord Nicholls’ dissenting opinion in Dimond would have been emboldened further with such evidence. Indeed, it is worthy of note that he opined that “The law on the measure of damages should reflect the practicalities of the situation in which a wronged person finds himself. Otherwise it would mean that the law's response to a wrong is a right to damages which will often be illusory in practice. I do not believe this can be the present state of the law in a situation which affects thousands of people every year”.

It is the author’s view that Recorder Le Poidevin QC’s and Pepperall’s J approach does not reflect the practicalities of the situation in which the Claimant/Appellant found himself and is, therefore, illusory.

Furthermore, what is also overlooked is that the ‘stripping out’ exercise explored by their Lordships in Dimond was obiter dicta and not ratio decidendi and, therefore, it is not strictly binding, but rather persuasive.

The Supreme Court has not re-issued the House of Lords’ ‘Practice Statement of 26 July 1966 (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234)’, which stated that the House of Lords would treat former decisions of the House as normally binding but that it would depart from a previous decision when it appeared right to do so. However, the Practice Statement is “part of the established jurisprudence relating to the conduct of appeals” and “has as much effect in [the Supreme] Court as it did before the Appellate Committee in the House of Lords” - Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 at pp 24, 25.

The Calculation


Mr Rose’s uncorroborated evidence was that odd days (i.e. those that are not multiples of 7) would be charged at 1/7th of the weekly rate, and that the basis for this evidence was again his “experience”.


However, contrary to Mr. Rose’s uncorroborated assertion, the terms and conditions of hire from Thrifty expressly provide that ‘In the event that you return the vehicle earlier than the date originally specified on the voucher, no refund will be made’ (Thrifty’s emphasis added).


What logically follows from this is that, should a hirer, for example, hire a vehicle for 7 days, extend the hire by a further 7 days, but then on day 12 decide to return the vehicle, the hirer will not be refunded for the unused days 13 and 14.


Therefore, Mr. Rose’s arithmetical approach of dividing a 7-day rate by 7, and then applying that on a pro-rata basis to the total period of hire, is demonstrably flawed.

Mr. Rose (and the Court) cannot have it both ways (i.e.) they cannot suggest that the 7-day rate is applicable, but then divide that rate by 7 to account for “odd days” when Thrifty (and all other short-term rental companies) expressly provide that this approach is not possible.


Of note, are the comments of Mr Justice Peter Smith in the case of Masood & Others v Zahoor & Others [2008] EWHC 1034 (Ch), in which he stated at p.132 that “Equally it is important that where a witness' evidence is inconsistent with documents or needs to be explained or clarified as a result of documents that too needs to be put to the witness. In many cases live testimony is often tested by contemporaneous documents which might show an inconsistency with what is then being said in the witness box possibly in a self-serving way many years after the event” (the author’s emphasis added).


Deposit


Last, but not least, any suggestion that Pepperall J has created a binding precedent that deposits are irrelevant to all pecunious Claimants, is demonstrably erroneous. 

Some mainstream suppliers require payment of the deposit (and hire charges) to be made via a credit card only.

Avis Prestige, for example, require two credit cards, as does Hertz for its premium vehicles. Sixt also requires a credit card for its premium vehicles, as does Thrifty, Enterprise, National, Alamo, and Green Motion, et al. Indeed, the EasyCar.com website reveals that ‘It's a common point of frustration for travellers, but one that is almost unavoidable – you need a credit card to rent a car. This strict requirement can be a major road block with very few ways around it. So why is it that car hire companies insist on a credit card?

Unlike a debit card, a credit card acts as a safety net for the rental company. It permits it to block a deposit amount as insurance in case of mishaps during the rental. The deposit gives the company the ability to collect repair fees easily or any outstanding traffic charges. Companies prefer credit cards because it proves to them the hirer is not a financial risk (i.e.) their costs will be covered as they can recover part or all of the deposit if needed.


With a debit card, the company cannot pull money from a bank account if it has insufficient funds. There is also no way to block a specified amount on a debit card. So even if the hirer has enough money in their account to cover the deposit, the car hire supplier would have to completely withdraw the funds, and then refund the money later on.


Ergo, the pecunious Claimant without a credit card cannot hire a premium vehicle from any of the above rental companies, and neither can the pecunious Claimant who possesses a credit card, but with insufficient funds on the same. 

In the words of Lord Hope in Lagden at p.34, this category of pecunious Claimant would have “had no other choice available” and, therefore, “there will be no ground for it [credit hire charges] to be deducted”.

Whilst persuasive, in the case of Medicina Ltd v Midlothian Council [2013] ScotCS CSOH_104, Lord Armstrong held at pp.29-32, that the underlying rationale of the decision in Lagden must be taken to be a consideration of whether any choice in the manner of mitigation of loss was available to the injured party when he stated “I am persuaded by the submissions for the pursuers to the effect that the underlying rationale of the decision in Lagden must be taken to be a consideration of whether any choice in the manner of mitigation of loss was available to the injured party.

Although it was urged on me for the defenders that the ratio in Lagden was limited to the concept of impecuniosity, I agree with the proposition for the pursuers that, in that case, the claimant's financial situation was simply the factual circumstance which brought about the lack of choice which rendered the costs incurred recoverable. The equivalent of the factual circumstance of impecuniosity in Lagden in the present case is the joint combination of Mr Thompson's age and occupation.

Although it may be said that such an analysis is beyond the ratio of Lagden, I do not regard it as an extension of the principle which underlies that decision. I do not accept that impecuniosity should be regarded as the only limited exception to the principle in Dimond. That being so, I consider that the pursuers' averments are sufficiently relevant in that regard and that the test in Jamieson is not satisfied. The extent to which the factors of age and occupation did preclude any choice is a matter for proof.

Whether the effect of the combination of the factors of age and occupation on the availability of basic car hire was reasonably foreseeable is ultimately a question of fact and therefore also a matter for proof. Whilst I have some sympathy for the argument that, if it is reasonably foreseeable that some drivers may not be able to afford basic car hire, as in Lagden, it may also be reasonably foreseeable that basic car hire may not be available to others for reasons of age or status, whether that can in fact be said to be the case is a matter which, in my view must be determined by a decision informed by relevant evidence”.

Indeed, Lord Hope stated at paragraph 35 in Lagden that “The criterion that must be applied is whether he had a choice - whether it would have been open to him to go into the market and hire a car at the ordinary rates from an ordinary car hire company”.

Consequently, there exists in practical terms, numerous exceptions to the obiter dictaenunciated in Dimond, namely:

(1) Impecuniosity

(2) Age

(3) Status / Occupation

(4) Licence endorsements

(5) Accident history

(6) Credit card deposits

Dean Roberts

Managing Director

DPR Solutions Ltd

Tel: 07539 375 139

Email: admin@dprsolutionsltd.com

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